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The Future of Dispute Resolution: The Mediation Alternative to Trial

By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

How will our judicial system work towards dispute resolution in the future, say 5, 10 or even 20 years from now? What can we expect if we are forced to resolve a legal matter in the state or federal court systems? Will the system be more user friendly? Will it find ways to efficiently process both large and smaller matters? Will it remain a costly process, often involving expensive pre-trial depositions, expert witnesses and trials? Will the courts establish alternatives to full blown trials that will prove to be effective ways to resolve disputes with less cost to the parties and less time consumed until a resolution is reached? Anyone who has been involved in the dispute resolution mechanism knows what a laborious and often mysterious process it can be.

One of my observations – after nearly 38 years being a trial and appellate lawyer – is that lawyers are often the cause of more delays instead of being efficient counsel for their clients in leading them through the system. In other words, rather than being dispute “resolvers,” lawyers too often become dispute “perpetuators.”

The mediation process is an opportunity – a time for the parties to avoid putting themselves through the litigation “mill” (aka: process) and get results. One of the biggest advantages of settlement is that the result is more likely to be perceived as “just.” Leaving the process and the result entirely to a third party, such as a judge, arbitrator or jury, may lead either or both of the parties to believe that the result was “unjust” or “unfair.” When we speak of mediation, we are talking about a definite and defined process, recognized by lawyers and judges – the formalized but voluntary, non-binding forum in which the parties agree to conduct negotiations of a dispute using a neutral intermediary who serves to guide the parties through the process. The mediator has no power to decide anything. The mediator’s duty is to try to get the parties to agree on the terms of resolving this conflict and disputed matter. The lawyer at a mediation wears two hats when representing his or her client. While a party’s lawyer is an advocate in this process, the advocacy skills that are involved are much different than those that would be used in the courtroom. In addition and apart from being an advocate, a lawyer also wears the hat of a counselor to advise the client on various issues during the mediation.

I see mediation as a definite, positive process. I enjoy trials and arbitrations, court hearings, and appeals. But, after all these years, I get great satisfaction when I am able to achieve a final result and get a good settlement early in the case, before we incur large litigation expenses. The client has the money to begin the life restructuring process and has avoided the pressures and uncertainties of litigation, which more often than not would only add to the emotional injury already caused by a serious accident, injury or illness which led to the litigation in the first place.

One author described a party’s decision to settle “now” or “later” as follows: “A party decides to sue or settle by comparing the value of the two alternatives S settlement and continued litigation. (Footnote omitted.) Continued litigation may lead to a ‘fight to the finish’ in which there is a judgment after a contested hearing or trial, an opinion on the merits, an appeal, and perhaps post-judgment resistance to the court's decree. (Footnote omitted.) But the choice is not always so stark. Because settlement is always permitted, even during and after trial, often the
choice is not between settlement and judgment, but between settlement now and settlement later.

A rational party will not contest a claim unless her expected net gain from continued litigation is greater than her expected net gain from settlement. (Footnote omitted.) Thus, for settlement to occur, the defendant must be willing to make an offer the plaintiff believes is superior to the result of any continued litigation. When the plaintiff's expected gain from litigation is less than the defendant's expected loss, settlement is possible because there is a ‘settlement gap,’ a range of values between the parties' respective estimates at which a settlement will benefit both parties.” ( 44 Hastings L. Rev., supra, at 13.)

Mediation is a means available to litigants to achieve settlement. Often, it is overlooked by lawyers in the beginning stages of litigation when mediation can often lead to an early – and very appropriate – settlement. This is a big mistake in my view, as it is at this early stage of litigation that the “best deal” can be achieved given the expense of protracted litigation. Often this is the best “economic day” for a client, considering the “present value” of money (i.e. the client has the use of funds now rather than the hope of some recovery later), and the cost of taking a case into the pre-trial and trial states (and possibly through appeal). The costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts as needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.

Thus, at an early mediation, a major factor in considering whether to settle is the future expense of proceeding without settling. This, when added to the risks of “winning” or “losing” (or ending up somewhere in between), makes early mediation an attractive alternative to going through the judicial process to an “end.”

I strive to get my client’s case into mediation as early as is reasonable to do so and to facilitate the mediation process so my client and I can get to the “goal line” of resolution. Bear in mind that the client is not going to push early mediation. It is the attorney who must do this, recognizing the advantages of the potential for an early mediation and resolution for the client. As one author puts it, “The fact that litigants are unlikely to propose the use of alternative processes but often are willing to use them suggests that, in order to increase voluntary ADR [Alternative Dispute Resolution] use, the discussion of ADR needs to be initiated by the court or by the litigants' attorney. Judges feel they, personally, should not be the source of ADR information for litigants because doing so might interfere with the attorney-client relationship and because they typically see the litigants only late in the litigation process. (Footnote omitted.) Given the central role of attorneys in the litigation process, attorneys may be the most appropriate persons to provide litigants with information about ADR processes and to help them understand and assess dispute resolution options in the context of their case.

Importantly, empirical research has shown that a key factor in litigants' willingness to use ADR is the recommendation and encouragement of their attorneys. (Footnote omitted.) For example, a majority of parties in domestic relations cases (68% of the men and 72% of the women) who chose to use mediation said their attorneys had encouraged them to try it, whereas less than one-third (32% of the men and 18% of the women) of those who rejected mediation had been encouraged by their attorneys to use it.” (Footnote omitted.) (R. Wisler, When Does Familiarity Breed Content? A Study of the Role of Different Forms of ADR Education and Experience in Attorneys' ADR Recommendations , 2 Pepp. Disp. Resol. L.J. 199, 204.) Mediation is a process of using an objective intermediary to get the parties into a position of avoiding or ending the highly confrontive and tension-filled process of litigation.

From the plaintiff’s [the party suing] perspective, it is a means of essentially “selling” the lawsuit to a defendant [the party being sued], who buys off the expense and exposure of ongoing litigation. It involves an exchange of offers and counteroffers made in more of an informal business, rather than a formal courtroom, environment. The whole process should be to work with the mediator and the mediation process of each party “giving in” and “giving in” more to reach an acceptable solution to the dispute. Hostility, anger, finger pointing, and accusations are not a part of the mediation process. Diplomacy, salesmanship and patience are the bywords. The parties, and their lawyers, can be firm, tough, even hard-nosed at times, but they need to do it politely and diplomatically.

The parties need to be prepared for the process by having the appropriate attitude before attending the mediation. This is not a deposition (giving pre-trial formal testimony) or a trial. This is where the client enters the business process of resolving disputes and essentially steps outside the courtroom. I usually have a pre-mediation conference several days before the mediation. Here is an agenda that I follow in getting the client in the appropriate frame of mind to attend and participate in the mediation process. During this conference I describe the informality of a mediation, that it is not a trial as the mediator has no power to decide anything, and that the mediator’s role is to facilitate negotiations and resolution.

I stress that it is the client’s decision whether to settle, and I make sure the client has all necessary information to make an informed decision about whether or not to settle. I also make sure the client understands that what takes place at the mediation is confidential. Nothing that is said or done during a mediation can be brought up in court during the trial of the client’s case. That is by statute and court rule, which have been adopted to facilitate a candid and open exchange during the mediation. It is just as important to prepare my client for the mediation as to do the other preparation. A prepared client will be able to make decisions as the mediation progresses on what terms and conditions of a settlement are to be considered and acceptable. Often, the client’s perspective on settlement will change as the mediation progresses.

That is good because the client hears what the other side has to say and can consider the points and counter-points of the case and factor those into the decision-making process. Also, the mediator will often comment on the issues and give his or her views on each side’s case and the pros and cons of settlement vs. proceeding further. This provides an objective, third-party’s view of the matter, which can be very valuable. As the future unfolds, more and more courts will be creating ways for litigants to enter the mediation process at an early stage. The San Francisco Superior Court has recently instituted an early mediation program. The San Francisco Bar Association also has a special program for early mediation. (I participate in both as a mediator and as a representative of my clients in these programs.)

The federal court has had a program of early mediation and “early neutral evaluation” for several years. So the future litigation process will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.

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